Love, Marriage, and the State

Gary Chartier has written another excellent book, Public Practice, Private Law: An Essay on Love, Marriage, and the State. I reviewed it for The American Conservative.

TGIF: Kim Davis's Stunt

Kim Davis probably performed a pure stunt, not an act of conscience "under God's authority," when she refused, as an elected county clerk, to issue marriage licenses to same-sex couples -- all couples, actually -- in Rowan County, Kentucky. It might have been a stunt intended to benefit Mike Huckabee's quest for the Republican presidential nomination. He certainly made the most of the opportunity.

Do We Have a Right to Marry?

Do we have a right to marry? It depends on what we mean by marry. If we mean making a contract with another consenting adult setting up a arrangement we'd want to call marriage, then the answer is yes.

But if we mean participation in the specific government-fostered institution characterized by marriage licenses, then the answer must be no.

Here's why: if the government-fostered institution were abolished tomorrow, as libertarians favor, no one's rights or freedom would be violated. (Justice Clarence Thomas seems to recognize this in his dissenting opinion.)

We have the inherent right to make contracts but we have no right to anything provided by the state, an inherently coercive organization. That's why the best argument for legal recognition of same-sex marriage is an equal-protection argument, not a liberty argument. It's not so much that we have a right to equal protection; it's that equal protection limits the discretion of government officials -- and that tends to be a good thing. The exception to this equality-but-not-liberty principle would be in those states that both forbid same-sex marriage and refuse to recognize private marriage contracts -- which seems to be all the states affected by the Obergefell ruling. As Ilya Somin writes:

In most states that banned same-sex marriage before today, a same-sex couple could not sign an enforceable marriage contract, even if its content was limited to purely private marital obligations between the two parties.

Thus such couples were not only denied equal protection; they were also denied liberty.

TGIF: The Libertarian Case for Legalizing Same-Sex Marriage

I tried to come up with a solid libertarian argument for why the Supreme Court should not have struck down state bans on same-sex marriage (SSM). (By a 5-4 vote, the court this morning declared those bans unconstitutional.)

I couldn’t do it. 

Roderick Long Scores on the Marriage Equality Issue

Victory Through Lexicography? | Bleeding Heart Libertarians

Screw the Vote

So the people get to vote on who may marry? And this pleases conservatives? I thought they disliked mobocracy.

Good for New York!

I’ll say it again. Good for New York!

Why the Evasion on Same-Sex Marriage?

[See update below.]

I'm appalled at the mental gymnastics some libertarians have undertaken to avoid having to acknowledge that the State has no valid grounds for refusing to recognize same-sex marriage. This is truly a disgrace. The reasons they give for not embracing the California ruling (pdf) striking down the ban on same-sex marriage on equal-protection grounds look more like evasions than good-faith objections.

I've come across at least four such evasions:

1. The State should have nothing to say about marriage, so approval of the ruling implies acceptance of the State's role (and by implication, the State).
2. Aren't there more pressing issues?
3. Marriage is about procreation.
4. Federal courts have no jurisdiction over state matters.

My quick answers:

1. Of course the State should get out of marriage. But it's in it now, so it should not be permitted to discriminate invidiously. If the State barred gay people from driving on the roads, would demanding that such discrimination cease imply approval of State roads or the State itself? Of course not.
   
2. To people denied the normal benefits of marriage -- regarding custody of children, hospital visitation, medical decision-making for an incapacitated partner, next-of-kin matters -- there may be no more pressing issue. Liberty is not an abstraction; it's about living the life you want to live. It's easy for heterosexuals to see this is no big deal. (Jim Crow was similarly no big deal -- to whites.) Besides, the ruling has been made. How does praising it distract from whatever is "more pressing"? We're capable of multitasking.
   
3. Marriage has never been exclusively about procreation. If that were so, couples that were infertile, elderly, and uninterested in having children wouldn't have been allowed to get married. Many other values have been at the core of marriage: economic security, love and emotional fulfillment, and more. A good place to start reading about this subject is Steven Horwitz's article on the evolution of family. A related objection to the ruling is that heterosexual intercourse has been the criterion of marriage consummation. So what? Institutions evolve. And besides, even if consummation were somehow essential, the reasonable mutatis mutandis principle is available. This objection is particularly absurd.
   
4. When people ignore the existence of the First, Second, and Fourth Amendments, those interested in freedom generally get annoyed. So how can they ignore the existence of the Fourteenth Amendment, which says, in part, "nor shall any State … deny to any person within its jurisdiction the equal protection of the laws"? Like it or not, that amendment exists. So I see no argument against federal jurisdiction. For excellent discussions of this issue, see Roderick Long's writings here and here.

Update 1: In the original post I did not take up the objection that courts shouldn't overrule public referendums or legislatures (which is slightly different from #4) because that constitutes judicial tyranny and a nullification of democracy. I left this out because I hear this from conservatives rather than from libertarians. It seem clear that if government exists, then there is nothing wrong with courts thwarting the public or the legislature when either oversteps the limits we hope are set for government and violates liberty. Need I elaborate?

Crimes Governments Commit

From the BBC:

A judge in Malawi has sentenced a gay couple to 14 years in prison with hard labour after they were convicted of gross indecency and unnatural acts.

The judge said he wanted to protect the public "from people like you".

Steven Monjeza, 26, and Tiwonge Chimbalanga, 20, have been in jail since they were arrested in December after holding an engagement ceremony....

"I will give you a scaring sentence so that the public be protected from people like you, so that we are not tempted to emulate this horrendous example," said Judge Nyakwawa Usiwa-Usiwa in the commercial capital, Blantyre.